Wiess v. Commissioner

1927 BTA LEXIS 3166 | B.T.A. | 1927

Lead Opinion

OPINION.

Aeundell :

The first question is whether H. C. Wiess made a valid gift of 51 shares of Magnolia Petroleum Co. stock to his wife on March 19, 1920. If it was a valid gift, no taxable income resulted from the sale of 50 shares through a firm of brokers on the same day. The Commissioner found the transaction to be “ colorable ” and determined that a profit had been realized on it.

All of the evidence before us indicates that a bona fide gift was made by Wiess to his wife. Realizing that the business in which he was engaged was hazardous he had it in mind to provide protection for his wife and family and to that end he had made several gifts to his wife prior to the transaction here involved. The stock was sold through a firm of brokers who accounted to the wife for the proceeds, and such proceeds were used by the wife for the purchase of other stock which she has since held and upon which she has received dividends. Each of the petitioners kept a set of books in which were recorded the several steps in the transaction. If a question arises from the fact that the transaction was not recorded in the books of the petitioners until April 30, 1920, a satisfactory answer is found in that such was the usual practice due to the bookkeeper’s devoting only his spare time to posting their books. There is also the fact, and we deem it corroborative of the petitioners’ claims, that the remaining one share of the stock involved was not sold until some time later in 1920 and it, too, was entered in the books of Mrs. Wiess as a transaction of her own. Considering all the evidence, we are of the opinion that Wiess made a bona fide gift of the 51 shares of stock to his wife on March 19, 1920, and that no taxable income arose from the sale of 50 shares thereof on the same date. As to the remaining share, a loss was sustained by Mrs. Wiess of $65, being the difference between $435, established as the value at the time of the gift, and $870, the selling price of the one share.

As to the “ B ” warrants of the Humble Oil & Refining Co., the question is whether the 809 warrants sold by the petitioner in 1920 were the ones acquired by gift from his mother, or whether they were a part of those he acquired through stock ownership in the company. The petitioner endeavored to keep the warrants received by gift separate from the others, and when he sold some of the warrants he sold only the number acquired by gift. We see no reason to doubt the uncontroverted testimony of the petitioner that the warrants he sold were the ones given him by his mother. As the sales price of the warrants was substantially the same as their value at the time acquired by the petitioner, no taxable gain resulted from the sales.

The transaction whereby the petitioner H. C. Wiess received from the American National Bank a check which he turned back for stock, is the same as that involved in B. R. Norvell v. Commissioner, 6 B. T. A. 56. We reach the same conclusion in this case.

Judgment will be entered on 15 days'1 notice under Rude 50.